BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130008996 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that after 6 months a general discharge is supposed to be upgraded to an honorable discharge.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 16 June 1983.  He completed training in carpentry/masonry.  He arrived in Germany on 26 October 1983 and he was assigned Headquarters and Headquarters Company, 78th Engineer Battalion.

3.  On 7 December 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for possession of a small amount of marijuana in the hashish form and for use of marijuana in the hashish form on 18 May 1984.

4.  On 3 January 1985, the applicant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for drunk and disorderly conduct and for domestic violence/disturbance.

5.  On 18 January 1985, the applicant was apprehended by the Military Police Investigation Section for questioning regarding damage to host nation property and damage to private property.

6.  On 8 February 1985, the applicant was notified by his unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory performance.  Specifically, his level of performance had been unsatisfactory and effects by the chain of command to improve his performance had been unsuccessful.  The commander further stated he had become a continuing disruptive influence on the good order of the unit and that it was unlikely he would ever perform satisfactorily on a consistent basis or become a productive member of the unit.

7.  On 8 February 1985, the applicant acknowledged receipt of the notification and after consulting with counsel he waived his right to submit a statement in his own behalf.

8.  On 26 February 1985, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13 and directed the applicant be furnished a General Discharge Certificate.

9.  On 22 March 1985, the applicant was discharged accordingly.  He completed 1 year, 9 months, and 7 days of creditable active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	b.  Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  His record shows he accepted NJP under Article 15, UCMJ for possession and use of marijuana.  He was referred to ADAPCP for drunk and disorderly conduct and domestic violence/disturbance.  He was apprehended by the military police for questioning pertaining to damage to host nation and private property.

3.  He was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He provides no evidence to show the character of his service is unjust or to substantiate his contention that after 6 months a general discharge is supposed to be upgraded to fully honorable.

4.  The type of discharge the applicant received appropriately reflects his overall record of service.

5.  Additionally, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the 

characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing; therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130008996



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ABCMR Record of Proceedings (cont)                                         AR20130008996



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